Alleged Improper Practice Under Section XI Paragraph A(d) v. Port Auth. Emp't Relations Panel
| Decision Date | 30 November 2020 |
| Docket Number | DOCKET NO. A-4137-18T2 |
| Parties | IN RE: THE MATTER OF THE ALLEGED IMPROPER PRACTICE UNDER SECTION XI PARAGRAPH A(d) OF THE PORT AUTHORITY LABOR RELATIONS INSTRUCTION, FINAL DECISION AND ORDER OF THE PORT AUTHORITY EMPLOYMENT RELATIONS PANEL, PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Plaintiff-Appellant, v. THE PORT AUTHORITY EMPLOYMENT RELATIONS PANEL, Defendant-Respondent, and PORT AUTHORITY POLICE BENEVOLENT ASSOCIATION, INC., Defendant/Intervenor-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Mayer and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2723-18.
Cheryl Alterman argued the cause for appellant (The Port Authority Law Department, attorney; Sharon K. McGahee, on the briefs).
Christine R. Lucarelli argued the cause for respondent The Port Authority Employment Relations Panel (New Jersey Public Employment Relations Commission, attorney; Christine R. Lucarelli, on the brief).
John W. Bartlett argued the cause for intervenor-respondent Port Authority Police Benevolent Association, Inc. (Murphy Orlando LLC and D. John McAusland, attorneys; Jason F. Orlando, John W. Bartlett, and D. John McAusland, on the brief).
Plaintiff Port Authority of New York and New Jersey (Port Authority) appeals from an April 11, 2019 order dismissing its complaint in lieu of prerogative writs and upholding a final agency decision issued by defendant Port Authority Employment Relations Panel (Panel). We reverse.
Defendant-intervenor Port Authority Police Benevolent Association, Inc. (PBA) filed an improper practice complaint against the Port Authority, alleging the Port Authority violated the terms of the parties' employment agreement byfailing to conform to safety standards promulgated by the Occupational Safety and Health Administration (OSHA).
The parties dispute whether OSHA applied to uniforms worn by members of the Port Authority's aircraft rescue and firefighting (ARFF) department under their personal protection equipment (PPE). The uniforms were made of polyester, rather than cotton, and were potentially dangerous in extreme heat. The PBA alleged the Port Authority violated its agreement with PBA members by not issuing cotton uniforms, conforming to OSHA standards, until almost two years after discovery of the non-compliant polyester uniforms.
ARFF personnel are assigned to firefighting responsibilities at area airports in New York and New Jersey operated by the Port Authority. The Port Authority issues PPE gear to ARFF personnel. PPE, also known as "bunker gear," is the outer layer of protective clothing worn by ARFF members while fighting fires.
Underneath the bunker gear, ARFF members don "station wear" or battle dress uniforms (BDUs). BDUs are the uniform worn by ARFF members in the station house and resemble a patrol or police uniform. In 2014, the material for the BDU attire was sixty-five percent polyester and thirty-five percent cotton.
The National Fire Protection Association (NFPA) develops "codes, standards, recommended practices, and guides . . . developed through a consensus standards development process approved by the American National Standards Institute." The PBA claimed OSHA uses "NFPA standards as the standard of care for firefighter[s]," and that NFPA 1975 set the standard for the clothing to be worn by ARFF members.
In 2014, the Port Authority recognized BDUs should have been compliant with NFPA 1975 because polyester uniforms posed a safety risk and could cause injury to individuals upon exposure to extreme heat. In accordance with NFPA 1975, BDUs should be cotton or Nomex blend because those materials do not melt under intense heat.
The Port Authority began the process of evaluating and switching BDUs from polyester to cotton in 2014. The change to cotton BDUs took two-years because the Port Authority required a full risk assessment, approval from the uniform committee, location of a vendor to provide a large quantity of cotton BDUs, and a signed contract. On June 22, 2016, the Port Authority received the cotton BDUs.
The Port Authority Board of Commissioners adopted the Labor Relations Instruction (LRI) to govern labor relations with its employees and theirrepresentatives. See Brown v. Port Auth. Police Superior Officers Ass'n, 283 N.J. Super. 122, 136 (App. Div. 1995). In accordance with the LRI, the Port Authority is empowered to engage in collective bargaining with the PBA regarding terms and conditions for union employees. The Panel is authorized to adjudicate disputes arising under the LRI.
On August 19, 2015, the PBA filed Improper Practice Number 15-35 (IP-15-35). The PBA alleged the Port Authority violated Article XLII of the parties' Memorandum of Agreement (MOA), requiring compliance with OSHA-promulgated safety standards for ARFF uniforms. The PBA's improper practice charge was referred to the Panel for resolution.
An improper practice claim is governed by Article XI of the LRI. Article XI, entitled "Improper Practices," provides in relevant part as follows:
In IP-15-35, the PBA alleged the Port Authority violated LRI Section XI(A)(a) and Section XI(A)(d):
The PBA also claimed the Port Authority violated Section XLII (1) and (2) of the MOA. Section XLII of the MOA, addressing "Safety and Health Standards," provides:
The Occupational Health and Safety Act (Act), authorizes the United States Secretary of Labor to promulgate occupational safety or health standards for employees. 29 U.S.C. § 655; 29 C.F.R. § 1910.1(a). The Act contains a "general duty clause," requiring every employer "furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees . . . ." 29 U.S.C. § 654(a)(1).
OSHA's regulations provide:
Section 1910.132(c) states "[a]ll personal protective equipment shall be of safe design and construction for the work to be performed." 29 C.F.R. § 1910.32(c).
On November 3, 2015, the Port Authority filed a denial of the allegations in IP-15-35. The Panel Chairman appointed a hearing officer, who conducted hearings on ten non-consecutive days over the course of eighteen months. Uponthe completion of the hearings, in an August 15, 2017 report, the hearing officer recommended the allegations regarding the Port Authority's issuance of non-cotton BDUs be sustained. On February 8, 2018, the Panel issued a tentative decision and order, upholding the hearing officer's recommendations.
After receiving comments from the parties, the Panel issued a June 12, 2018 final decision and order. The Panel found the Port Authority's actions did not conform with OSHA-promulgated standards, and the nearly two years it took for the Port Authority to comply with OSHA standards demonstrated a lack of good faith contrary to the MOA.
The Panel found OSHA encompassed the NFPA standards for firefighting gear used by ARFF members. The Panel determined the Port Authority violated Article XLII because the polyester BDUs worn by the ARFF members under their PPE for two years did not satisfy OSHA's general duty clause and therefore violated the parties' MOA. The Panel also agreed the Port Authority failed to make a good faith effort to bring BDUs into conformance with the applicable standards. As a result, the Panel sustained IP-15-35 and ordered the Port Authority to "cease and desist from unilaterally changing terms and conditions of employment" and post notice of the violation.
On July 12, 2018, the Port Authority filed an action in lieu of prerogative writs in the Superior Court, challenging the Panel's final decision and...
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